ۥ- V[[[X@reeeey v48VVQY Appendix A Human Rights and Equal Opportunity Commission Notice under section 35 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) Concerning Equal Opportunity in Employment Complainant: Mr Bob Bradley Respondent: The Commonwealth of Australia; Department of Defence 1. The Commissions jurisdiction This is a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Act) of discrimination in employment on the ground of age. The jurisdiction of the Human Rights and Equal Opportunity Commission (the Commission) in relation to complaints of discrimination in employment and occupation was described in my first report to Parliament on complaints in this area. That description is set out in Appendix 1 of this notice. In 1989 the Human Rights and Equal Opportunity Commission Regulations declared a number of additional grounds of discrimination for the purposes of the Act with effect from 1 January 1990. The subject of this notice, age discrimination, is one of those grounds. 2. The complaint 2.1 The nature of the complaint On 11 May 1993 the Human Rights and Equal Opportunity Commission received a complaint under section 32 of the Act from Mr Bob Bradley alleging discrimination in employment on the basis of age. Mr Bradley alleged that on 22 April 1993 he attended the Army recruiting unit in Townsville to inquire about entry to the Army aviation unit as an experienced helicopter pilot. He was advised by Corporal Chambers of that unit that the relevant scheme was the Specialist Service Officer (SSO) Pilot Scheme and that to be eligible for appointment applicants must a) be an Australian citizen or be eligible to become one b) have a minimum four subject passes in Year 12, or equivalent, which include English, mathematics and physics (physics pass may be at Year 11 level) c) meet the Army Aviation medical and dental requirements d) meet the current security clearance and civil check requirements e) be aged between 19 and under 28 on the date of appointment and f) be assessed as suitable by a Selection Board. According to Mr Bradley, while he did not comply with the age requirement, being 37 years old, he already had considerable flying and training experience. Corporal Chambers advised him to contact Captain Dan Cullen of 5 Aviation Unit Townsville. Mr Bradley said that he contacted Captain Cullen on two occasions and explained his situation. However, each time Captain Cullen was unable to advise him as to his possible entry into the scheme. On 6 May 1993, Mr Bradley allegedly re-contacted Corporal Chambers who attempted to contact Major Power, the officer in charge of air crew recruitments in Canberra. As he was unsuccessful in doing so, Corporal Chambers advised Mr Bradley that he would try again and contact him once he had spoken to Major Power. Mr Bradley stated that, in the absence of Corporal Chambers, he was informed by Corporal Judith Pitson that Major Power had informed her on 11 May 1993 of Mr Bradleys ineligibility for the scheme due to his age. He stated that both Corporal Chambers and Captain Cullen had indicated that in view of his experience and training it may have been possible to apply an age waiver to his application for entry as a SSO Army Pilot. He did not so apply. Mr Bradley complained that he was denied a six year employment contract as a SSO pilot because of his age. He claimed compensation of $220,000 as fair and reasonable compensation for his loss. 2.2 Conciliation Attempts by the Commission to conciliate this complaint were unsuccessful. 3. Submissions As a result of inquiries and investigation into this complaint I formed the preliminary opinion that the practice of requiring that pilots be aged between 19 and 28 on the date of their appointment to the Specialist Service Officer Pilot Scheme constituted discrimination on the basis of age. Pursuant to sections 33 and 27 of the Act I invited the Department to make submissions orally or in writing or both in relation to that practice. The Department elected to make oral submissions in addition to its written submissions made earlier in the inquiry and after the preliminary finding. On 3 and 4 February 1997 I convened the inquiry in Sydney to take oral submissions from the Department. As a matter of procedural fairness Mr Bradley was also invited to participate in the process. Mr Bradley elected to appear in person. The Department was represented both by solicitors and counsel. 4. The basis of the findings 4.1 Elements of discrimination In deciding whether the matters complained of constitute discrimination within the terms of the Act I must consider four main issues: - whether there is an act or practice under the Act - whether the act or practice arises in employment or occupation - whether there was an distinction based on age - whether the distinction nullified or impaired equality of opportunity. If I find that the complaint involves an act or practice arising in employment or occupation and that there was a distinction based on age which nullified or impaired equality of opportunity, then I must consider whether the distinction was based on the ability of the complainant to fulfil the inherent requirements of the job. 4.2 Whether there is an act or practice The complainant submitted that there was both an act and practice of discrimination by the respondent on the basis of age. The respondent did not dispute that the setting of the upper age limit constitutes a practice. 4.3 Whether the act or practice arises in employment or occupation I note that the complainant asserted and the respondent denied that the act or practice complained of arose in employment. The complainant alleged that he attended the Townsville Recruiting Office and inquired about his suitability to join the pilot training scheme. He alleged that he contacted Captain Cullen and Corporal Chambers and that he was advised by Corporal Pitson, speaking on behalf of Major Power, that he was unsuitable for entry to the scheme due to his age. He alleged that, contrary to the normal procedure of the ADF recruiting staff, he was not counselled as to his rights to continue with the application and was not offered the necessary assistance to do so. On behalf of the respondent, in oral submissions, Lt. Col. Littlewood, Director of Army Recruitment, stated that the ADF had found no record of a Mr Bob Bradley making an official enquiry or lodging an application for recruitment into the Australian Regular Army from 1993. However, the respondent did not dispute that Mr Bradley did make inquiries about admission to the SSO scheme. The respondent contended that the complainant has no standing to make this complaint because he had not made a formal application for appointment to the training scheme; he had merely made preliminary enquiries. On that basis, the respondent alleged that the complainant is not a person who has suffered loss or damage as a result of any act or practice in employment on the part of the respondent. The Act does not require the complainant to be an aggrieved party in the sense that other Commonwealth anti-discrimination legislation requires a complainant to be personally aggrieved by the conduct complained of. Further, it is reasonable that a person, after inquiring about a position and being told he or she was unsuitable because of a characteristic that cannot be changed, such as age, would not proceed to lodge a written application. The circumstances would be different where someone was told he or she was unsuitable to apply for a position because, for example, of insufficient experience. If there had been a misunderstanding at the time of inquiry about the applicants level of experience, the applicant could then address his or her experience in a written application. However, where someone asks for information about a position and is told an age criterion precludes a successful application, it would be an improper restriction on the application of this legislation to then hold that by not proceeding to lodge a formal application the persons complaint did not arise in the context of employment. Since the complaint arises in relation to inquiries about an employment opportunity I am satisfied that the act or practice complained of arises in employment. 4.4 Whether there was a distinction based on age Mr Bradley must establish that the treatment he experienced was a consequence of a distinction based on age. The Department argued that the issue for the Commission to consider was not whether it was satisfied on the material provided that the stipulated age range is an inherent requirement of the position of a military line pilot but whether the exclusion of persons outside the age range of 19 to 28 years, on the basis of age, from employment as military line pilots is based on the inherent requirements of the job of a military line pilot. The intention of the respondent in enforcing the age requirement is not at issue under this head of consideration. The Act obliges me to look only at effect. The effect of the requirement is to distinguish between applicants and between potential applicants on the basis of age. 4.5 Whether the distinction nullified or impaired equality of opportunity For an act or practice to be discriminatory the Act requires the complainant to show that the distinction, exclusion or preference has had the effect of nullifying or impairing equality of opportunity or treatment. It is not disputed that the assessment of an applicants unsuitability for the pilot program on the basis of age nullified or impaired that applicants entitlement to apply for the position. It therefore nullified or impaired the complainants equality of opportunity. 4.6 Whether the distinction was based on the inherent requirements of the job 4.6.1 The law Not all distinctions, exclusions or preferences are discriminatory within the meaning of the Convention. Article 1, paragraph 2 of the Convention provides that measures based on the inherent requirements of a particular job will not be discriminatory. That is, an employer may discriminate on the basis of age where age is an occupational requirement justified by the nature of the job. Under the Act also there is no discrimination if the distinction, exclusion or preference ?in respect of a particular job (is) based on the inherent requirements for the job?. In this complaint the selection criteria for the job Mr Bradley applied for specify that applicants must be within the age range of 19 to 28 years of age. I must now consider whether the requirement that the applicant be aged between 19 and 28 years of age is an inherent requirement of the job. There have been several notable domestic cases in recent years which have dealt with the proper construction of the term inherent requirements. The narrow construction Commissioner Carter in X v Department of Defence considered the meaning of the words inherent requirements in relation to section 15(4) of the Disability Discrimination Act 1992 (Cth). He distinguished between the inherent requirements of the employment and the incidents of employment. He stated ... for the exemption to apply, there must be a clear and definite relationship between the inherent or intrinsic characteristics of the employment and the disability in question, the very nature of which disqualified the person from being able to perform the characteristic tasks or skills required in this specific employment. Only then can the employer avoid the unlawfulness which attaches to the discrimination. Commissioner Carter suggested that a narrow and restrictive definition was appropriate in the context of legislation which aims to protect human rights. Commissioner Carters view was cited with approval by Justice Marshall in Christie v Qantas Airways Ltd (1996) 138 ALR 19 in the context of section 170DF(2) of the Industrial Relations Reform Act 1993 (Cth) and by Judicial Registrar Ritter in Wannberg v Alloa Holdings (decision No. 346/96 of 31 July 1996 in the Industrial Relations Court of Australia). In the Industrial Court decision in Christie v Qantas Airways Ltd (1995) 60 IR 17 (Christie) Chief Justice Wilcox considered a challenge to the policy of Qantas Airways Limited of compulsorily retiring pilots at the age of 60. Mr Christie challenged the age limit on medical and operational grounds. He succeeded on the medical ground but failed on the operational ground and so consequently His Honour held that it was an inherent requirement of his position that he be under 60 years of age. In relation to construing the meaning of inherent requirement his Honour held ... the question whether a particular requirement is an inherent requirement of a particular position is a matter to be determined objectively. It does not depend on the attitude or operational methods of the particular employer. I also agree that the word inherent refers to a requirement that is fundamental, intrinsic, or essential to the position, not something that is truly unnecessary, although insisted on by a particular employer. The respondent appealed to the Full Industrial Court comprised of Justices Spender, Gray and Marshall. Justice Spender, dissenting, confirmed Chief Justice Wilcoxs view that it was an inherent requirement of the position occupied by Mr Christie that he be less than 60 years of age. Justice Gray, however, concluded that the age requirement was not an inherent requirement of the position. In the course of his decision he commented on determining the correct construction of inherent requirement. An inquiry as to whether something is an inherent requirement of a particular position must involve the characterisation of the particular position...In my view both the contractual requirements to fly anywhere in the world and the bidding and roster system are irrelevant to the inherent requirements of the appellants particular position, for the purposes of s. 170DF (2). That subsection refers to an inherent requirement, namely something that is essential to the position, rather than being imposed on it. I do not think that an employer, by stipulating for contractual terms, or by creating or adhering to roster systems, can create inherent requirements of a particular position. An employer could not, by term of contract, give itself the right to dismiss a woman who became pregnant... Despite any contractual term, those characteristics would not become inherent requirements of the employees position. ... Protection against discrimination is provided by s. 170DF, even when there is a cost to the employer in adopting a rostering system, so as to avoid terminating the employee for a prohibited reason. I recognise that the distinction between an inherent requirement and one imposed by a term of the contract of employment, or by the adoption of some system by the employer, is not always clear...They are nonetheless easily recognisable as part of the particular position, rather than being added to it as obligations or functions....The policy underlying the section is one that, wherever possible, protects employees from discrimination in termination of their employment for any prohibited reasons. That policy would be undone completely if an employer could arrange the terms of the contract, or its operating systems, so as to permit it to terminate the employment of employees on those prohibited grounds...no system is immutable. Efficiency might have to be sacrificed in order to avoid unlawful discrimination. Justice Marshall concurred with Justice Gray. The broader construction The Full Federal Court in the Commonwealth of Australia v. The Human Rights and Equal Opportunity Commission and X heard an appeal from a decision of Commissioner Carter in a complaint under the Disability Discrimination Act 1992 (Cth). His Honour Justice Burchett found for a broader construction of inherent requirements. The inherent requirements of a particular employment are not to be limited to a mechanical performance of its tasks and skills ... a narrow construction of [inherent requirements] would have serious consequences for employers and third persons. I do not think Parliament intended the section to be construed so as to have those consequences. It is to be borne in mind that the decision whether a person would be unable to carry out the inherent requirements of the particular employment must be reached taking into account all ... relevant factors that it is reasonable to take into account... If operations, at least operations at the core of employment, cannot be carried on safely or satisfactorily, its inherent requirements are not being met in a practical sense which would accord with the context. In such a case, the distinction between operational and non-operational requirements is not of utility... What is to be distinguished is a requirement that does not arise out of the nature of the employment or any aspect of it. Later, Justice Burchett rejected the approach taken by Justice Gray in Christie: The construction of [inherent requirements] demands a different approach from that taken by Gray J in Christie. It must look, not to inherent requirements as contrasted to contractual requirements, but to inherent requirements being matters essentially bound up with the nature of employment, as contrasted with matters stemming, not from the nature of employment, but rather from a view about the disability itself. Justice Drummond held [T]he sub-section [s.15(4)(a)] cannot be read as drawing a dichotomy between the inherent requirements of a job and the employers operational requirements for that job. Section 15 deals with employments offered by employers, ie with work activities that form part of each employers business or organisational operation. The word inherent in s.15(4)(a), in my opinion, limits the exemption created by the sub-section to those requirements of a particular position the satisfaction or fulfilment of which will directly, as opposed to remotely, further or aid in the furthering of the particular employers operations. A requirement can, in my opinion, have the quality of being an inherent one even though that is a reflection of the business structure which the employer has elected to adopt ... An employer may adopt an organisational structure which results in a requirement for a particular job that qualifies as an inherent one for that job. But an employer will not escape infringing the prohibitions in s.15(1)(b) and 2(c) even though the requirement discriminates against a worker with a disability, if the balancing exercise called for by s.15(4)(b) is adverse to him. The more idiosyncratic an inherent requirement imposed by an employer is, the more likely it will be that s.15(4)(b) will operate to deny the employer exemption from the prohibitions in s.15(1) and (2). Justice Drummond held, further, at page 4 of his decision It will, in each case, be a question of fact just what are the boundaries of the environment in which the employees must perform the physical and mental operations required to carry out the duties of the position by reference to which the inherent requirements of a particular employment must be identified. Finally, Justice Mansfield held It will be a matter of fact for each case to determine what are the inherent requirements of particular employment. That test will exclude matters relating to a particular employers convenience; such matters might be relevant if the employer invokes s.15(4)(b) that in that employers circumstances, the accommodation of the person with the disability who can perform the inherent requirements of the particular employment nevertheless imposes an unjustifiable hardship on the employer. It is a question of objective fact whether the particular methods by which the purpose of a job is presently achieved or the particular way in which the work is performed reflects its inherent requirements or not. An employers operational requirements are not necessarily or even commonly, inherent requirements of the particular employment. That is so whether such operational requirements are directed to efficiency, cost of production, safety, or other considerations. If such matters do not comprise inherent requirements of the job, then the employer must endeavour, despite its existing systems, to accommodate the disability by modification or adjustment of systems or procedures; the employer will only be excused from failure to do so if they would impose an unjustifiable burden. Safety or health considerations may arise at that point. But that is not to say, for the reasons expressed above, that there will not be circumstances where the inherent requirements of the particular employment involving its competent performance will exclude a person or persons by reason of health or safety consideration from those who are able to carry out the inherent requirements of the particular employment. The decision seems to have five key points. 1. The inherent requirements of a particular position or job are not to be limited to a mechanical performance of its tasks and skills. They are matters essentially bound up with the nature of the employment, as contrasted with matters stemming not from the nature of the employment but rather from a view about the characteristic such as disability or age itself. 2. The decision maker must consider the consequences not only for the employer itself and third persons but also for the actual or prospective employee. 3. A dichotomy should not be drawn between the inherent requirements of a job and the employers operational requirements for that job. The word inherent, however, limits the exemption to those requirements of a particular position the satisfaction or fulfilment of which will directly, as opposed to remotely, further or aid in the furthering of the particular employers operations. 4. It will be a matter of fact for each case to determine what are the inherent requirements of particular employment. It is a question of objective fact whether the particular methods by which the purpose of a job is presently achieved, or the particular way in which the work is performed, reflects its inherent requirements or not. 5. An employers operational requirements are not necessarily, or even commonly, inherent requirements of the particular employment. That is so whether the operational requirements are directed to efficiency, cost of production, safety or other considerations. If a matter does not comprise an inherent requirement of the job, then the employer must endeavour, despite its existing systems, to accommodate the characteristic by modification or adjustment of systems or procedures. The employer will only be excused from failure to do so if it would impose an unjustifiable burden. 4.6.2 The correct test for this complaint Although the Full Federal Court in X came to a unanimous view that there had been an error of law in Commissioner Carters determination, each of the three judges constituting the Court gave his own reasons for judgement. Each formulated the test of inherent requirements in different terms. Regrettably, therefore, the Court has provided at best very limited assistance to anyone seeking to apply the law. Fortunately I do not need to decide in this complaint what the Court in X actually decided on this important point. The decision of the Full Industrial Court in Christie is of greater relevance and bears greater resemblance to the facts in the complaint before me than that in X. In Christie the Full Industrial Court was considering the interpretation of the term inherent requirements by recourse to the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 (ILO 111). That Convention is also the basis of the term inherent requirements in this complaint. Further the context of the use of the term in the Act is more similar to that in section 170DF of the Industrial Relations Act 1988 (Cth) which was interpreted in Christie than it is to section 15 of the Disability Discrimination Act 1992 (Cth) which was interpreted in X. In X, Justice Drummond distinguished the decision of the Full Industrial Court of Australia in Christie from the matter he was considering. It is the absence in s.170DF of the Industrial Relations Act 1988 (Cth) of any provision comparable to s.15(4) (b) of the Disability Discrimination Act that makes the former materially different from the latter; for that reason alone, the decision in Christie v. Qantas Airways Limited (1996) 138 ALR 19, in which the majority adopted a very narrow construction of the phrase the inherent requirements of the particular position in s.170DF, has little relevance to the proper construction of s.15(4)(a) of the Disability Discrimination Act. For these reasons I rely more on the decision in Christie, in which the majority adopted a narrow construction of the phrase the inherent requirements of the particular position than on the decision of the Full Federal Court in X. 4.6.3 The facts In relation to this complaint the selection criteria for the position specified that applicants must be within the age range of 19 to 28 years of age. This is clearly a distinction based on age. I must consider therefore whether the requirement that an applicant be aged between 19 and 28 years of age was an inherent requirement of the job. The respondent argued that the complainant, being aged 37 at the time of making his application to join the pilot program, was unable to fulfil the inherent requirements of the position. It advised that the SSO Pilot Scheme is designed to recruit and train pilots to operate the Armys aircraft. The Department advised that the upper age limit is set to enable an officer to have a structured career progression and an opportunity to reach higher ranks. The upper age limit is consistent with the Armys promotion system, by which an Army officer is only considered for promotion over a period of 2 to 3 years. The Department stated that this system guarantees the youth of officers entering the next higher rank and that the use of specific entry ages ensures equitable promotion chances. The Department further advised that from a technical training perspective the upper age limit is an inherent requirement for the position. It stated the younger a trainee is the more adaptable to learning he or she is. Some experienced commercial pilots have not been able to modify their behaviour to meet the military requirement. (Departments response dated 12 November 1993) The Department stated that the nature of military flying requires a high level of a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved. The Department stated that a number of factors established a direct correlation between the age of the pilots and their ability to perform in a combat flying environment safely and effectively. These factors are a) medical fitness: on a statistical basis, a high percentage of persons in the 35 year plus age bracket develop one or more medical conditions which disqualify them or severely restrict their capacity to maintain a medical flying category suitable to military aviation b) physical performance: medical data show that for people in excess of 35 years of age there is a marked deterioration in reaction time and the capacity to withstand and recover from the stresses involved in military flying c) training failures: experiences in Australian and overseas armed forces have shown that mature aged qualified pilots encounter a high incidence of difficulty in ?unlearning? acquired habits and skills to adapt to the requirements of military aviation d) peer group integration: because the average age of line pilots in the Armys two aviation regiments is 23 years and the actual deviation from that mean is small, an older person would experience problems in integrating with that group where teamwork, mutual trust and acceptance is vital e) return on investment: the likelihood of an older trainee developing some disqualifying medical condition in the near future is very high with the consequential effect that the Army would not recoup sufficient service from him to justify the very high cost of training. The respondent argued that these factors correlating age and a pilots ability to perform in combat flying situations were based on medical data and the experience of the Australian Defence Force and a number of overseas military organisations. Furthermore, the respondent claimed that the possession of flying skills is not a guarantee of the successful completion of the pilot training course. Experience has shown that individuals with a significant civilian flying background can have difficulties adjusting to the military aviation environment. In reply, the complainant contended that there was nothing in the Departments response that led him to think that he could not perform the same combat pilot duties as a 23 year old individual with no aviation background prior to training. The complainant claimed that his fitness had not changed since his application in April 1993. If he had been accepted in the 1993 intake, he said, he would now still be able to perform flying duties, contrary to the Departments argument that most pilots over 37 years of age would be disqualified from or restricted in flying duties due to medical grounds. The complainant argued that his existing qualifications and skills would have significantly reduced the cost of training. He claimed that, as he had not developed any disqualifying medical condition, the Army wold have recouped a significant amount of its investment, if not completely recovering the outlay. The complainant further argued that he was not given the opportunity to prove his skills, which he suggested would have attracted a waiver of the age criterion. The Department stated that waiver approval may be sought for an applicant who does not meet the selection criteria but who is considered to possess special skills or qualities which may warrant waiving one or more of the initial criteria. The respondent noted that an applicant has no entitlement to have a waiver request processed and that the decision is made by recruiting staff on the basis of vacancies and suitable applicants. The Department advised that, should the Army be unable to fill vacant positions with applicants who meet the initial selection criteria, then the recruiting staff may seek approval from Army Office in Canberra to grant a waiver. The Department said that it had no record of the complainant making such an application. The respondent argued that the complainant, being aged 37 at the time of making his application to join the pilot program, was unable to fulfil the inherent requirements of the position. 4.7 Findings I am satisfied from the submissions put by the respondent and the oral evidence adduced at the hearing that the respondent included the stipulated age range in the application criteria as part of a genuine attempt to ensure that applicant pilots would be physiologically and psychologically equipped to complete their training successfully and that they would do so at an age where the respondent would be able to recoup its training expenditure. However, I am not satisfied that the exclusion of persons such as the complainant from employment as military line pilots based only on the fact that they fall outside the age range of 19 to 28 years is non-discriminatory on the basis that the age-bracket is an inherent requirement of the job of a military line pilot. Being within the stipulated age bracket is but one of several criteria stipulated by the Army for eligibility for appointment. The other criteria could most probably be defended as inherent requirements: that an applicant must be an Australian citizen or be eligible to become one; that an applicant must have a minimum of four subject passes in Year 12, or equivalent, which include English, mathematics and physics (physics pass may be at Year 11 level); that an applicant must meet the Army Aviation medical and dental requirements; that an applicant must meet the current security clearance and civil check requirements and be assessed as suitable by a Selection Board. The concerns raised by the Army to justify the age criterion are arguably met by these other selection criteria, in particular the medical criterion. For this reason the age criterion is not necessary to achieve the Armys purpose in imposing the criterion. In its defence of the age criterion the respondent stated that the nature of military flying requires a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved. There is no direct correlation between a persons age and medical fitness. In any event, the requirement that applicants meet the Army Aviation medical and dental requirements would achieve the maintenance of the Armys medical and fitness standards directly, more assuredly and more appropriately than an arbitrary age requirement. I am also not satisfied of the relevance of age to the other factors raised by the respondent. It argued that these factors established a direct correlation between the age of the pilots and their ability to perform safely and effectively in a combat flying environment. As in relation to the medical fitness requirement these other criteria are better assessed directly rather than indirectly through the arbitrary use of age as a proxy. As with medical fitness, the other criteria need to be assessed individually for all applicants. Physical performance and reaction time should be individually assessed in the medical or aptitude examinations. I also consider that the respondents Assessment Board would be able to assess an applicants suitability for unlearning acquired habits and skills to adapt to the requirements of military aviation and for peer group integration. Again, while these may be inherent requirements of the job, I find that there is insufficient evidence to establish a direct correlation between an applicants age and the ability to meet these criteria. The respondent does not need to use age to achieve the ends sought. Indeed doing so may well have the very opposite effect to that intended. It may well result in unsuitable people being recruited simply because they are under the designated age. The respondent also argued that the age criterion is necessary to ensure the respondents return on investment. It asserted that the likelihood of an older trainee developing some disqualifying medical condition in the near future is very high with the consequential effect that the Army would not recoup sufficient service from him or her to justify the very high cost of training. While return on investment is obviously relevant this consideration cannot form the basis for making age an inherent requirement of the position. I note that the ILO Committee of Experts states in its Report that exclusively economic reasons do not constitute a justification. Consideration of the potential for return on investment could form part of the criteria used by the Assessment Board when assessing an applicants overall suitability but it should be assessed directly and not assumed because of the individuals age. I do accept that in some circumstances it may be appropriate to use age as a proxy. For example, it would be futile to require the respondent to assess persons below fifteen years or over seventy years for acceptance to the SSO scheme. However, it is only acceptable to use an age proxy where there is no, or so little, possibility of someone in that age group being able to comply with the inherent requirements of the job that to require the respondent to expend resources on assessing the applicant through the selection process would be unreasonable. It may be that, as the respondent argues, more persons outside the stipulated age bracket may fail to meet the admission standards. However, these applicants are entitled to be assessed on their individual merits and, if they fail, to fail on the basis of their failure to meet specific medical or fitness or suitability standards that apply to all applicants, and not because they fall within a stipulated age bracket, regardless of their ability to meet the other criteria. Conversely, applicants outside the stipulated age bracket who can meet the other selection criteria ought to be able to be admitted for training and not excluded on the basis of an arbitrary age distinction. I am not satisfied that the exclusion of persons, such as the complainant, outside the age range of 19 to 28 years from employment as military line pilots is based on the inherent requirements of the job of a military line pilot. Accordingly, I find that the acts and practices complained of by the complainant constitute discrimination in employment based on age. 5. Discussion of recommendations Having found the failure to promote the complainant discriminatory under the Act I am required to consider what recommendations I should make. The complainant submitted that he was denied a six year employment contract as a SSO pilot because of his age. He claimed compensation of $220,000 as fair and reasonable compensation for his loss. The respondent denied that it had acted in a discriminatory manner and argued that accordingly compensation was not necessary. The Division of the Act under which I am conducting this inquiry provides specifically that, where an act or practice is found to constitute discrimination, the Commission may make such recommendations, including compensation, as it considers appropriate in relation to a person who has suffered loss or damage as a result. I do not consider that it is appropriate that I make the recommendation proposed by the complainant. There is no evidence that, even if the respondent had accepted the complainants application to join the scheme, the complainant would have ultimately been accepted into the scheme. His loss, therefore, is the loss of the opportunity to be assessed on his individual merits. This loss has been seen in other matters as justifying a small award or recommendation of damages. I do recommend that the complainant be awarded compensation for his loss as a consequence of the discrimination in the sum of $5,000. 6. Notice of findings of the Commission The Commission finds that the act and practice complained of by the complainant, namely that he was denied the opportunity to apply for a position in the SSO Pilot Scheme on account of his age, constituted discrimination in employment based on age. 7. Reason for findings 1. The respondents refusal to accept the complainants application to join the SSO scheme was by reason of his being 37 years of age at the time of making the application. 2. The respondents refusal to accept the complainants application to join the SSO scheme by reason of his age is a distinction or exclusion on the basis of age. 3. The exclusion has had the effect of nullifying the complainants equality of opportunity or treatment in employment. 4. It is not an inherent requirement of the particular position that applicants for the SSO scheme be aged between 19 and 28 on the date of appointment. 8. Recommendation for compensation The respondent should pay the complainant the sum of $5,000 being general damages. Dated at Sydney this 5th day of March 1998 _______________________________________ Chris Sidoti Human Rights Commissioner Endnotes  Human Rights and Equal Opportunity Commission Report into complaints of discrimination in employment and occupation: compulsory age retirement HRC Report No.1, 30 August 1996.  Notified in the Commonwealth of Australia Gazette on 21 December 1989.  (1995) EOC 92-715.  See p. 78,378.  Christie v. Qantas Airways Limited (1995) 60 IR 17 at 28.  (1996) 138 ALR 19.  Full Federal Court, Brisbane, 13 January 1998; QG 197 of 1996.  Although the comments were made in relation to the Disability Discrimination Act 1992 (Cth) I find that they are pertinent to the issues I am considering here.  At pp. 6 and 7.  At p. 12.  At p. 4.  At p. 26.  At p. 3.  Report of the Committee of Experts p. 74. ~n6.Annn6!u~n6.Annn6u~n6.Annn6u.A"*,Xr9ophiYkEcGpK9|yqnfc@F @F @F @F @F     @B B &9;VS""%&'E(T(++E,\,v,,,----0/1/3/040q0000V1~xrlf`ZTN                     @F @F @F V1s111r3+5,5/5'7>>> ?*??????R@S@U@_D`DbDDDDE#Eľ|vpjd^XR                             #ETFUFKKLKMmM TTdDi,jľ|vpjd^[UO                             ,jllllmmm&mmnnop*p({*{8{ωЉ RUt/ľzroif`]WT   B      @F                ѝ1RTUŞǞȞɞ\^_ "#,.|xtpB B  ,./9;<EGHsuwFF *,XٷjG"86n J $\8!n#%&86n J $\8!n#%xx%86n J $\8!n#%xx!86n J $\8!n#%&<9r 6n J $\8!n#%xxXZ\^`bdrOڵ~YY3%86n J $\8!n#%6xx$86n J $\8!n#%xx<$86n J $\8!n#%xx$86n J $\8!n#%xx%86n J $\8!n#%xxO" g YkEcڵ^^^YQ<$86n J $\8!n#%xx$86n J $\8!n#%xx<$86n J $\8!n#%xx%86n J $\8!n#%6xx ?GpK ;M!!S"۳aY4444444$86n J $\8!n#%xx<$86n J $\8!n#%xx<$86n J $\8!n#%xx'86n J $\8!n#%nxx$86n J $\8!n#%xxS"""$%&'E(T(*+E,^,_,-3/˦ssssssN$26n J $\8!8nxx$86n J $\8!n#%xxxx$86n J $\8!n#%xx<$86n J $\8!n#%xx<3//21r3/5L6&7'7;;>> ?U@۵jjjEEE$86n J $\8!n#%xx%86n J $\8!n#%7xx$86n J $\8!n#%xx%86n J $\8!n#%6xx$86n J $\8!n#%xx U@bDDWFoFKLڵjD$86n J $\8!n#%xx%86n J $\8!n#%6xx$86n J $\8!n#%xx%86n J $\8!n#%6xx$86n J $\8!n#%xx%86n J $\8!n#%6xxLKMmMT>?UҳW[ڵj<'86n J $\8!n#%nxx$86n J $\8!n#%xx%86n J $\8!n#%6xx$86n J $\8!n#%xx%86n J $\8!n#%6xx [?^``"aCc-d>dehDi,j۵eee?%86n J $\8!n#%6xx$86n J $\8!n#%xx$86n J $\8!n#%xx%86n J $\8!n#%6xx$86n J $\8!n#%xx ,jklmmnp$qrMsuv|w}wmz*{8{8~܀?@Ɇv 6Rt۵ccccccccccX 0$86n J $\8!n#%xx<$86n J $\8!n#%xx%86n J $\8!n#%6xx$86n J $\8!n#%xxtʔK/ݚ;=?Aj۶____Z555555$56n J $\8!n#2xx'56n J $\8!n#26xx$56n J $\8!n#2xx$56n J $\8!n#2xx$86n J $\8!n#%xxjxTǞ^".;Guwy{}հ}}wldd^SK22 %%22 %%22$5n J $\8!n#%$<9r 6n J $\8!n#%9r !56n J $\8!n#29r 22 endnote textiB B  @@ F 9r 9r K56n J $\8!n#xx xx+-3?=y>>BDUJRa 1nk }1 *5R_juӠӠӠӠӠӠӠӠQYv Tms Rmn `Symbol HelvTimes New Roman Arial Tahoma CG TimesTimes New Roman CETimes New Roman CyrTimes New Roman GreekTimes New Roman TurTimes New Roman Baltic Arial CE Arial Cyr Arial Greek Arial Tur Arial Baltic Tahoma CE Tahoma Cyr Tahoma Greek Tahoma Tur Tahoma BalticCG Times CECG Times TurbFF[CE|+ Appendix AHREOCHREOC